shouting loudly

DMCA author admits law’s failure

At a conference over the weekend, former Clinton Administration IP chief Bruce Lehman admitted that his brainchild of a law banning the circumvention of digital rights management technologies hasn’t worked out as well as he had hoped.

The conference, Musical Myopia, Digital Dystopia: New Media and Copyright Reform (pdf), was at McGill University in Montreal on Friday. Lehman’s panel, “The Digital Rights Management Dilemma,” also featured speakers including U of Ottawa Law Professor Michael Geist and industry lawyer-turned-USPTO official Ann Chaitovitz.

In his presentation (Google Video link here), Lehman basically admits that the DMCA has failed to solve the digital dilemma. I’ve provided extended transcripts of large chunks of his speech below, but here are some highlights:

Unfortunately, at least in some areas, our policies haven’t worked out too well, and that’s not for want of trying.

So I am sorry to say, but I think at least with regard to music, I believe that we are in—if not, entering—the post-copyright era.

I don’t want to be—hopefully, there’s not any, you know, I won’t be quoted in the US, but I’m afraid our Clinton Administration policies didn’t work out very well.

This is absolutely awesome. The DMCA was a terrible idea, and to hear Lehman acknowledge that the law just hasn’t worked out as planned just might fuel the drive for reform.

That last sentence (which is how he ends his presentation) is particularly choice. “Don’t quote me on this, but the one thing I’m best known for is, well, a failure.” Too late, Mr. Lehman. Thanks to Geist’s blog post and BoingBoing’s derision (Cory Doctorow may be the strongest anti-DMCA voice on the internet today), you’ve already been quoted and pilloried all over the blogosphere.

Techdirt says, “not much of an apology.” Harold Feld reminds us that critics spoke out before the law passed, only to be ignored. Good Morning Silicon Valley chides, Don’t blame me, I only built it.

Lehman fails to discuss in any meaningful way the terrible negative effects of the DMCA. These are also glossed over by Chaitovitz, who contends that the triennial exemption hearings illustrate that the DMCA is working just fine. (She clearly hasn’t read Catch 1201, in which Oscar Gandy and I argue that the rulemaking doesn’t work and probably never will.) Thankfully, Michael Geist identified some of the collateral damage in his presentation.

As promised, here are several extended quotes from Lehman’s presentation. Pay attention to his disses of the whole media industry. Times reference the Google Video player link, and [brackets] represent summary paraphrases:

11:48 My purpose here this morning, I think, is to put the DRM debate in perspective as it relates to the Digital Millennium Copyright Act and the policies that were developed in the United States during the 1990’s by the Clinton Administration, where I served as Assistant Secretary of Commerce—it’s now Undersecretary of Commerce—and Commissioner of Patents and Trademarks. And we had responsibility for developing the intellectual property policies of the United States, and its international diplomacy regarding intellectual property, too, which led to the current WIPO Copyright Treaty and the Performance and Phonograms Treaty. And our Dig Mill Cop Act is really an iteration in domestic law of the requirements of those treaties. And, of course, Canada is still contemplating what to do about that. Now Canada has the benefit of the soon-to-be decade of experience of the US in attempting to manage these policies.

[The DMCA was about creating good economic policy, in the US and abroad. We were trying to foster the internet revolution.]

15: 36 We had all kinds of task forces and working groups, and so on and so forth, and we had a working group. In terms of the electronic superhighway, that quickly got turned into something a lot less jazzy-sounding, and that was the National Information Infrastructure Task Force, chaired by Ron Brown, Secretary of Commerce, and I was the head of Intellectual Property Working Group. We produced a 250-some-page white paper, and at the end of that white paper, you will find the first draft of what became the Dig Mill Cop Act.

17:20 Their reasoning was that the “copyright owner would have to use technology to protect themselves. We envisioned that, and we were prepared to give rightsholders rights under the copyright law to protect themselves when they used such technology. So we introduced this notion of an anticircumvention right. That is, we assumed they would encrypt and use other methods to restrict distribution of their product in digital format, and we wanted to prevent other people from just going out and knowingly and willingly trying to defeat that activity.

19:04 Well, we’re now a decade into that, and I have to say, as much as—and I have taken so much heat, you can’t believe it. I’ve been called all kinds of names and everything else.

[I’ve been called a tool of Hollywood. Jonathan Tasini predicted I’d be ridng around in limousines.]

19:52 I have to say, don’t ask for gratitude. Hollywood does not have a big heart. It’s a cold place, and with a short memory. Nevertheless, it wasn’t about my future, it was about trying to create an economic policy that would be good for my country—and hopefully, others too, in the world—to have an economy that wasn’t just based on back-breaking physical labor, but on trying to create an economy based on the fruits of the mind.

20:35 Unfortunately, at least in some areas, our policies haven’t worked out too well, and that’s not for want of trying.

[The music industry is still in decline, thanks largely to unauthorized trading. It’s so dire that labels are going after artists’ concert revenues, which used to go straight to the band.]

22:48 We clearly are developing a new economic model, because our attempts at copyright control, at least thus far, have not been successful. So I am sorry to say, but I think at least with regard to music, I believe that we are in—if not, entering—the post-copyright era. And I hate to say that b/c I think copyright was a great model for compensating artists, but I really think we are now in the post-copyright era.

[This isn’t the end of musical creativity. We’re headed toward a system of corporate patronage. Corporations will still need music for radio play, commercials, movies—they’ll commission it.]

25:54 I’m afraid that’s where we’re going, and we’re going that way, because people have lost respect for the copyright law. But I don’t just blame teenagers and college students. I really blame the moguls in the music industry because, had they been thinking about these business models when we were doing our work in 1994 in the Clinton Administration [...] perhaps we would not be in the situation that we are.

28:02 I don’t want to be—hopefully, there’s not any, you know, I won’t be quoted in the US, but I’m afraid our Clinton Administration policies didn’t work out very well.